The Court of Appeal today allowed former opposition leader Anwar Ibrahim’s appeal to refer one question of law regarding his challenge on the justiciability of the Pardons Board decision to the Federal Court.
The Court of Appeal ruled that Anwar will be able to pose his question of law to the Federal Court regarding his challenge on whether the Pardons Board’s decision could be questioned.
The Court of Appeal would not be hearing the case but would case manage the matter for it to be referred to the High Court. Case management had been set for Feb 2 at the High Court.
The unanimous decision was made by a three-member bench led by Justice Rohana Yusof. The other judges are Justice Zakaria Sam and Justice Mary Lim.
Justice Rohana after a two-hour deliberation after hearing submissions, agreed the High Court judge had erred in not referring the question to the Federal Court.
“We have given due consideration to the written and oral submission and we find the real question posed is not Article 42(11) but whether Article 42(11) read together with Article 40(1A). We agree with the appellant (Anwar) that Juraimi Hassan’s case had not considered Article 40(1A), bearing in mind the article (in the Federal Constitution) had been in force in 1994.
“We allow the appeal and set aside the order to allow the dismissal of leave and direct the High Court to refer the question to the Federal Court by Feb 2, for the matter to be case managed. We also make no order as to costs,” Justice Rohana said in her oral decision.
Following the decision, Anwar expressed relief and said “Alhamdulillah” (Praise be to God).
“I am here for the big fight. But this decision is welcomed,” he said.
Can Pardons Board decision be questioned?
It was widely held that the Pardons Board’s decisions cannot be questioned. However, Anwar had raised a point of law question based on cases in the United Kingdom and amendments to Article 40(1A) in 1994.
Anwar’s lawyer N Surendran said the decision had wide implications if the Federal Court agreed with them that the decision of the Pardons Board could be questioned.
“This affects the rights of all prisoners especially those facing the death penalty. If the apex court allows, the rights of prisoners to be heard before the Pardons Board will be made,” he said.
Basically the question of law posed is whether the decision by the Pardons Board can be challenged via judicial review following its process to arrive to its decision to advise the Yang di-Pertuan Agong or the ruler and whether the Juraimi and Sim Kie Chon cases were correctly decided. (Juraimi was the caretaker involved in the Mona Fandey case)
It was reported that High Court judge Justice Nor Bee Ariffin had dismissed Anwar and his family’s applications to refer the question of law to the Federal Court on how the board arrived at its decision, after she allowed a preliminary objection by the Attorney-General’s Chambers, which appeared for the board.
The Pardons Board claimed it rejected Anwar’s application made under Rule 113 of the Prisons Regulations 2000. However, Anwar and his family denied making any application under that provision.
Source : Hafiz Yatim @ Malaysiakini